Two Years Later, Federal Digital Storage Rules Still a Mystery to Many

The key event that caused the FRCP changes occurred in March 2000, when then-Vice President Al Gore reported that he could not immediately produce e-mails related to a probe by the Department of Justice into his fund-raising activities.

At the time, White House counsel Beth Nolan said the White House e-mails were recorded on a series of 625 tapes that would take up to six months to be searched. Setting up the tape-searching equipment alone would take two months, Nolan claimed.

Shortly afterward, a movement was started to shore up the court rules regarding digital data. This was led by Thomas Allman, senior counsel at the Chicago firm of Mayer, Brown, Rowe & Maw.

Basically, all U.S. businesses are now required to have full knowledge of the whereabouts of all their electronic data to produce evidence needed in a reasonable amount of time.

In litigation, for example, this would mean producing within 30 days relevant e-mails, text documents, spreadsheets or IMs that were originated months or years ago. The rules also dictate that two businesses involved in litigation must agree no later than 30 days before the first court date exactly what electronically stored evidence will be in play.

There is a caveat, however: Businesses do not have to keep everything. The rules say that documents deleted in the course of regular business are immune in the case of litigation.

"What a business needs to show is a repeatable, predictable process of data storage and accessibility," Allman told eWEEK in 2006.

"If e-mail or any other documentation is killed out of the system as a result of regular practice—such as a monthly or yearly purge of old documents—then that is acceptable to the court as being in the course of regular business."